Commonly, dismissed employees behave badly post-dismissal. Not only does bad behaviour post-dismissal often confirm an employer's difficult decision to terminate the employee's employment, it can also be used to defend an unfair dismissal claim, including in relation to reinstatement.
While bad behaviour post-dismissal can often be frustrating and potentially damaging to an employer's business, it can be useful in defending a reinstatement claim on the basis that there has been a loss of trust and confidence such that it would not be feasible to re-establish the employment relationship.
Bad behaviour post-dismissal can also be used as part of unfair dismissal proceedings to:
- discount the dismissed employee's credibility as a witness
- assist the Fair Work Commission in assessing compensation and contingencies, particularly in relation to the likely time the dismissed employee would have remained in employment, had his/her employment not been terminated.
Reinstatement Inappropriate in Light of Post-Dismissal Conduct
Compensation for an unfair dismissal in accordance with the Fair Work Act (Cth) 2009 must not be ordered unless the Fair Work Commission is satisfied that reinstatement is inappropriate.
Disgruntled dismissed employees commonly make threatening phone calls to their former employer, use foul language in post-dismissal communications, threaten violence or negative publicity and make disparaging online comments about their former employer and colleagues. This post-dismissal conduct can be relied on by employers to establish a loss of trust and confidence making reinstatement inappropriate. An employer's success in defending a reinstatement application on this basis of bad behaviour post-dismissal will depend on its ability to establish:
- the dismissed employee engaged in post-dismissal conduct that has resulted in a loss of trust and confidence and that this loss of trust and confidence is soundly and rationally based
- a sufficient level of trust and confidence cannot be restored to make the employment relationship viable and productive.
A loss of trust and confidence in this context relates to factors that are essential to making an employment relationship workable and is different to the implied contractual term of mutual trust and confidence.
A former abattoir worker, Mr. Challinger, was dismissed by JBS Australia Pty Ltd (JBS) for failing to comply with safety instructions and using threatening language, engaging in threatening behaviour and making personal attacks towards his manager when directed to comply with those instructions1. Mr. Challinger filed an unfair dismissal claim.
Following Mr. Challinger's dismissal and prior to the Fair Work Commission making a decision in relation to his claim, he saw a number of former colleagues at a local pub. Mr Challinger:
- told a former colleague to "F### off..." when the former colleague asked Mr. Challinger how everything was going
- made derogatory statements about the group of former colleagues, including in respect of their continued employment with JBS
- stared at the group of former colleagues in a way that made them feel uncomfortable.
JBS argued that the post-dismissal conduct broke the necessary trust and confidence between the parties such that there would be no practical chance of re-establishing an effective workable employment relationship between them. Further, the unwarranted and abusive post-dismissal conduct was consistent with the conduct that led to the dismissal in the first place and demonstrated Mr. Challinger's views about the company making reinstatement inappropriate.
The Fair Work Commission was persuaded by the approach taken in an earlier case of the Full Bench2, including consideration of the following factors:
- a loss of trust and confidence is a relevant consideration when considering an application for reinstatement, but not the sole criterion
- the onus of establishing a loss of trust and confidence rests on the party making the assertion
- there may be a limited number of circumstances in which any "ripple on the surface of the employment relationship will destroy its viability", however in most cases the employment relationship is capable of withstanding some friction and doubts
- the fact that it may be difficult or embarrassing for an employer to re-employ a dismissed employee is not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate
- the primary question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive.
Ultimately, the Fair Work Commission was not persuaded that a single brief incident that occurred in a social setting between people who work in different areas of the JBS workplace rendered reinstatement problematic on the basis of a loss of trust and confidence.
In reaching its decision, the Fair Work Commission placed weight on the fact that JBS did not lead direct evidence from managers and supervisors, who would be responsible for directly supervising and managing Mr. Challinger if he was reinstated, about the impact of the post-dismissal conduct on their trust and confidence in Mr. Challinger and the impact of this loss of trust and confidence on business operations.
JBS was ordered to reinstate Mr. Challinger.
Lessons for Employers
The reinstatement of Mr. Challinger highlights the need for employers wishing to defend a reinstatement claim on the basis of post-dismissal conduct to establish that:
- the dismissed employee has in fact engaged in conduct which has soundly and rationally resulted in a loss of trust and confidence by the employer. Employers can establish poor behaviour post-dismissal by:
- conducting routine searches of email and internet activity for a period prior to and immediately following the dismissal, including during any notice period or hand over arrangements
- maintaining file notes or records of any communication post-dismissal with the dismissed employee which is aggressive, disrespectful or otherwise inappropriate
- monitoring the dismissed employee's social media activity and maintaining records of any inappropriate references by the dismissed employee to his/her former employer or colleagues
- obtaining statements from employees who have witnessed inappropriate behaviour post-dismissal either within or outside the workplace.
- reinstatement is inappropriate in light of the established loss of trust and confidence. The Fair Work Commission decisions in this area confirm that it is insufficient to simply assert that trust and confidence in a dismissed employee has been lost to defend a claim for reinstatement. Instead, the claimed loss of trust and confidence needs to be shown to have the effect of making the ongoing employment relationship unworkable. To meet this evidentiary burden, employers should at least:
- obtain evidence from those supervisors and managers who would be responsible for directly managing the dismissed employee, if reinstated, about their lack of trust and confidence in the dismissed employee as a result of the post-dismissal conduct (and any other relevant factors)
- obtain evidence about the feasibility (or lack of feasibility) in placing the dismissed employee in another part of the workplace or under the supervision of another manager who has not lost trust and confidence in the dismissed employee
- put forward an assessment as to the effect that the loss trust and confidence would have on the operations of the workplace
- establish that it is not simply difficult or embarrassing to re-employ the dismissed employee in light of the post-dismissal conduct, but instead that the necessary level of trust and confidence cannot be restored to make the relationship viable and productive.
1 Scott Challinger v JBS Australia Pty
Ltd (U2014/5789) 15 December 2014
2 Thinh Nguyen and another v Vietnamese Community in Australia t/as Vietnamese Community Ethnic School South Australia Chapter  FWCFB 7198
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.